The Government's Losing Its War on Leaks

The United States government is actively investigating a broad array of groups, aiming to curtail leaks of classified information and the terror attacks it argues that the leaks facilitate. Both efforts have failed spectacularly in the past two months.

The United States government is actively investigating a broad array of groups: members of the media, Wikileaks activists, foreign nationals, its own employees. Its goal is to curtail leaks of classified information and the terror attacks it argues that the leaks facilitate.

Despite some of the most sweeping systems of investigation ever revealed publicly, both efforts have failed spectacularly in the past two months. Edward Snowden, famously, is the seventh person prosecuted by the Obama administration under the Espionage Act of 1917 — more than twice all previous administrations combined. And in April, the bombings in Boston revealed the inability of intelligence operations to halt a major terror attack.

In its effort to stop terror attacks and leaks, the government is investigating:

Itself

McClatchy recently reported on the government's "Insider Threat Program," a system of internal review and scrutiny that "requires federal employees to keep closer tabs on their co-workers and exhorts managers to punish those who fail to report their suspicions."

The program originated after Bradley Manning's leak of classified information to Wikileaks. In its broadest strokes, it's a sort of "if you see something, say something" program for spying. But in practice, McClatchy reports, it's created a culture of intimidation. The Department of Defense is still in the process of implementing it, but it has created a list of suspicious activities that should — or, rather, must — be reported. The Department of Agriculture and the government's weather group were given a tutorial literally called "Treason 101."

While the president also offered increased protections to whistleblowers as part of the program, it's feared that "Insider Threat" will be used to intimidate those threatening to draw attention to misbehavior by encouraging peers or managers to report them as engaging in questionable activity. As some note, it suggests a slippery slope.

“It was just a matter of time before the Department of Agriculture or the FDA (Food and Drug Administration) started implementing, ‘Hey, let’s get people to snitch on their friends.’ The only thing they haven’t done here is reward it,” said Kel McClanahan, a Washington lawyer who specializes in national security law. “I’m waiting for the time when you turn in a friend and you get a $50 reward.”

Created in October 2011, the program failed to prevent Snowden's disclosure. Yesterday, NSA head Keith Alexander told ABC's This Week that "clearly the system did not work."

Wikileaks

The government has slightly better luck in its post hoc investigations. The Nation has details on its push to investigate the group that spurred that paranoia: Wikileaks.

The magazine got copies of subpeonas and search warrants related to two Iceland-based activists. A Virginia court ordered Google to turn over data about the pair's email communications as part of its investigation. On multiple occasions, people associated with Wikileaks have been interrogated by the FBI. Smari McCarthy, one of the two activists, described one incident.

[H]e was approached by plainclothes FBI agents in May 2012 late at night at the Navy-Archives metro stop in Washington, DC, during a business trip. “It was very disconcerting,” he said. “It was clear from the fact that they found me there and then that they had been following me, possibly for as much as five days, waiting for me to be alone.”

The criminal investigation at issue, one assumes, is the Manning leak.

The media

Even before Snowden's revelations, the Department of Justice was under scrutiny for its intense push to curtail leaks to the media. Last month, we learned that the department had subpoenaed phone records from the Associated Press under a sweeping court order. Shortly thereafter, another subpoena of Google accused Fox News' James Rosen of conspiring to violate the law by publishing classified information leaked to him by a State Department employee. (That employee is one of the administration's seven prosecutions.)

In the aftermath of the Snowden leaks, at least one member of the government — Rep. Peter King of New York — suggested that the Guardian's Glenn Greenwald be arrested and prosecuted for publishing the NSA documents.

Non-Americans

The Foreign Intelligence Surveillance Act allows the National Security Agency to collect information on those suspected of terror activity, with the authorization of the secret FISA Court. But we learned more last week about the extent of that surveillance, which includes not only its PRISM and fiber optic tapping systems, but similar systems in the UK to which it has access. Given that the process is carried out in secret, the NSA's boundaries for considering someone a terror suspect are unclear. But what similar boundaries exist for British data-collection is even more so. At least one representative of British intelligence bragged that they "have a light oversight regime compared with the US."

The NSA has argued that "over 50" terror incidents have been stopped primarily through its surveillance under FISA. Most of the details of those are classified, so it's hard to know the extent to which this surveillance played a role.

Some Americans

Under the existing surveillance system, some Americans are included in the government's investigations. There are those who are two degrees from an international terror suspect. There are those whose phone calls, collected under the Patriot Act, link them to overseas suspects.

The NSA has repeatedly stressed its data-gathering "minimizes" the collection of data on Americans. But one of Snowden's leaks suggests that those procedures are both rife with loopholes and includes data on Americans even under the procedures meant to focus only on non-American suspects. There's a big difference between data collection and investigation, of course, which the NSA has also repeatedly stressed.

The scope of the investigations then, is this: If you are an American who is not a member of the media or a member of the government or an activist with Wikileaks, the NSA has data on your phone calls but more than likely isn't actively using them as part of its terrorism push, nor is the FBI likely to be actively using them to curtail government leaks.

And evidence that these investigations are working as intended is limited.

This article is from the archive of our partner The Wire.

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